Is it reasonable for MSHA to request this document?

Over the years, in this space, we have discussed Mine Safety & Health Administration (MSHA) requests for documents and the issues mine operators and their supervisors should consider when determining an appropriate response.

We return to this topic from time to time because it continues to be one of the single biggest issues we deal with on an endless basis in our practice. This is not because people in the mining industry keep needing to have their memories refreshed regarding the rules.  Instead, it’s because the rules tend to keep shifting.

Ten to 15 years ago, this discussion was a lot more black and white. At that time, operators could primarily focus on the mandatory documents that were required to be maintained pursuant to MSHA regulations (i.e., workplace examination sheets, pre-ops and training records) and not have a great deal of concern about the documents that fell outside of these categories.

In fact, at that time, it was fairly rare that an MSHA inspector would ask for anything beyond those types of documents. But that is clearly no longer the case.

What’s happening

Since then, review commission and federal court decisions have expanded the breadth of what can constitute an appropriate request for documents under the Mine Act.

This includes requests for employee medical records in Part 50 audits, requests for employee contact information and other “reasonable” requests in investigations. As we noted in the past, the basis for much of this expansion has been through interpretation of the Mine Act’s language at Section 103(h), which states, in pertinent part:

“In addition to such records as are specifically required by this Act, every operator of a [mine] shall establish and maintain such records, make such reports, and provide such information, as the Secretary … may reasonably require from time to time to enable [the Secretary] to perform his functions under this Act.”

In evaluating the reasonableness of MSHA requests, the focus tends to be directed at the overall scope of the request. Is it tailored to the issue that is being evaluated or investigated? Is it critical to the agency’s inquiry?

In the alternative, courts will also look at whether the request is burdensome for the operator. Does that burden outweigh the government’s need for the document?

Removing the courts from the equation, for the moment, there is another consideration that really should be weighed by MSHA itself as its enforcement personnel increase the frequency of their requests for traditionally nonmandatory documents (i.e., work orders, safety audits, near-miss reports and structural studies). Specifically, do such requests have an adverse impact on safety? Every operator understands the purpose of requests for documents of this nature.

MSHA inspectors want to parse every aspect of a work order or audit report to evaluate – in the inspector’s estimation – whether the operator acted quickly enough or effectively enough in addressing a condition or practice that was identified.

As usually happens the day after a game, there is some decision or action that can be second-guessed. In the context of MSHA inspections, however, that second-guessing usually results in higher gravity and negligence allegations.

The problem with this is it discourages operators from conducting these good faith, nonmandatory auditing and internal reporting exercises that are designed to enhance workplace safety.

Across the mining industry, operators are confronted with this cost-benefit analysis – identifying safety problems versus heightened enforcement liability for mine personnel.  The more aggressive the agency becomes in reaching for these materials, the less likely these purely voluntary and effective company safety mechanisms will be used.

Final thoughts

In the short term, it is likely that these expansive document requests will continue.

In that light, mine operators need to make sure their supervisory personnel are trained to handle the real possibility that they will receive an MSHA request for nonmandatory documents. They should recognize immediately that this is not a standard request and that they need to get help from their supervision – or counsel – as quickly as possible.

Threats of an inspection-impedance citation should not outweigh a supervisor’s opportunity to get appropriate guidance. In such a circumstance, mine personnel should ask the inspector to describe the statutory or regulatory basis for the request. The ultimate goal is to determine if the request is reasonable.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.